WASHINGTON, Sept. 21, 2016 - Should seeds
coated with neonicotinoids be regulated as pesticides under the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA)?
The answer to that question, which is at
the heart of a lawsuit in federal court in San Francisco, could have huge
implications for farmers, who plant neonic-coated seeds on about 142 million
acres of corn, soybeans, and other crops annually, according to the
Environmental Protection Agency.
On one side of the dispute are the
plaintiffs – individual beekeepers, the Pollinator Stewardship Council,
American Bird Conservancy, Center for Food Safety and Pesticide Action North
America. On the other side are the Environmental Protection Agency and industry
groups that have entered the case as intervenors, including CropLife America
and associations representing seed manufacturers, ag retailers, and corn,
soybean, cotton and wheat growers.
The parties filed briefs last week
summarizing their arguments for U.S. District Judge William H. Alsup, who has
scheduled a hearing for Oct. 27.
At issue is an EPA
guidance issued in 2013 for evaluating alleged
cases of pesticide-related bee deaths and other incidents. The guidance said
that planting neonic-coated seeds is not considered a “pesticide use.” Instead,
EPA said the seeds can be considered “treated articles” that are exempt from
FIFRA regulation.
The plaintiffs argue
that the 2013 guidance was a substantial change from EPA’s 10-year-old
interpretation of “treated article,” defined under the law
as “an article or substance treated with, or
containing, a pesticide to protect the article or substance itself (for
example, paint treated with a pesticide to protect the paint coating, or wood
products treated to protect the wood against insect or fungus infestation).”
“The difference is significant, both
legally and practically,” the plaintiffs said. “There is a substantial
difference between pesticidal effect that is limited to the seed itself and
pesticidal effect that extends beyond the seed, whether to the future full
plant (through the systemic nature of the neonicotinoid pesticides) or to
surrounding air, soil, water, plants, and numerous non-target invertebrates,
including valuable pollinators, as well as to birds.”
In May, Alsup
denied the government's request to dismiss the case,
saying that “if the 2013 guidance did consummate a new rule, and thus a final
agency action, then defendants clearly violated federal law by failing to
comply with rulemaking requirements.”
If neonic-coated seeds were considered
pesticides, the plaintiffs said EPA would have to conduct a full review of
their environmental effects, which could include the impact on federally listed
species.
“It is clear from FIFRA’s language and
legislative history that Congress did not intend to allow EPA to wholesale
exempt a broad class of pesticides from registration, particularly where those
pesticides have unreasonable adverse effects on the environment,” the
plaintiffs said, alleging that as neonic-coated seeds began to be widely used
in the mid-2000s, “commercial beekeepers and honey producers throughout the
United States started experiencing high death rates of their bees.”
“Many beekeepers directly observed toxic
dust clouds billowing from seed planting machines, spreading the insecticides
far from where the seeds were planted, to neighboring farms, marginal
vegetation visited by their bees, waterways, and even directly to their
beehives,” the plaintiffs said in their brief, which was filed Sept. 16 (the
same day EPA and the industry groups filed their briefs).
The plaintiffs point to a 2003
EPA fact sheet for the neonic
clothianidin that says it “has the potential for toxic chronic exposure to
honey bees, as well as other nontarget pollinators.” Agricultural
researchers estimate that one of every three mouthfuls of food consumed by
Americans directly or indirectly depends on pollination by honey bees, and bee
pollination alone adds about $15
billion in value to agricultural crops each year in the United States.
But the effects of neonics, when used as
seed coatings or in field application, are vigorously disputed. The industry
intervenors said
in their brief that all neonicotinoid
pesticide products and their individual uses as seed treatments “have cleared
EPA’s robust, science-based registration process under FIFRA and have been
found to “perform (their) intended function without unreasonable adverse
effects on the environment,” as defined by FIFRA.
EPA acknowledges in
its brief that bee populations have been declining,
but says the causes “are the result of a complex set of interacting stressors.”
“The primary stressors believed to impact
Colony Collapse Disorder and the broader declines in honey bee health are poor
nutrition (due in part to decreased availability of high-quality forage lands),
exposure to pests such as Varroa mites, disease (viral, bacterial, and
fungal), bee biology, genetics, and breeding, and exposure to pesticides and
other environmental toxins,” the agency’s brief says.
Addressing the plaintiffs’ claims, however,
EPA contends that its guidance document conveys no legal obligations to anyone.
“EPA, state, and tribal officials are entirely free to act at variance with the
document,” the agency said in its brief. “The EPA guidance document (the
plaintiffs) challenge is not a judicially reviewable agency action – much less
a final agency action – regarding the regulatory status of treated seed.”
EPA
is currently reviewing the effects of neonics on
pollinators. Reviews of imidacloprid, chlothianidin, thiamethoxam and
dinotefuran are expected to be completed no later than next year. EPA expects
to complete its review of acetamiprid in 2018-19.
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